© 2009 Openfilm, LLC
This is an agreement between Openfilm, LLC ("Openfilm") and You. What we will refer to after this as the "Agreement" includes this document headed "Openfilm Member Agreement" and also any policies, guidelines and amendments that may be incorporated into this Openfilm Member Agreement or presented to You from time to time. This Agreement describes the terms and conditions on which Openfilm offers You participation in Openfilm's video distribution and advertising program and related services (the "Openfilm Membership Program" as further described below). "You" (and "Your", as applicable) means the person or entity identified in the registration form submitted.
PLEASE READ THIS AGREEMENT CAREFULLY. This Agreement sets forth the legally binding terms and conditions for Your participation in the Openfilm Membership Program. By registering, clicking "I Agree" or otherwise participating in the Openfilm Membership Program, You represent to Openfilm that You are at least eighteen (18) years of age or otherwise capable of entering into and performing legal agreements, and that You agree to be bound by the following terms and conditions. If You register on behalf of a business, You represent to Openfilm that You have the authority to bind that business and Your acceptance of this Agreement will be treated as acceptance by that business. In that event, "You" and "Your" will refer to that business in this Agreement. If You do not accept this Agreement in full, please do not register for or participate in the Openfilm Membership Program.
With this in mind, You agree to and acknowledge the following:
Openfilm develops and maintains a network of video content creators and advertisers. Openfilm also provides related proprietary and non-proprietary technologies that facilitate the distribution of video content from participating content creators, that display advertisements on the Openfilm website, and that provide links to advertising content from participating advertising partners. This network and technology are referred to after this as the "Openfilm Network." Openfilm makes, or may make, the Openfilm Network available to the public via the Openfilm website, currently located at "www.openfilm.com" (the "Openfilm Site") and/or via the website's software applications, plug-ins, blogs, media search engines, toolbars, games, components or downloadable code, and other viral online media such as peer-to-peer networks, file sharing, instant messaging and email of Openfilm.
The Openfilm Network, the Openfilm Site and related products and services are together referred to after this as the "Openfilm Products". The Openfilm Membership Program permits You to participate in, use and/or obtain access to the Openfilm Products in a variety of ways. These include but are not limited to the following:
We will refer to any participation in the Openfilm Membership Program and any use of or access to the Openfilm Products as "Participation" or to "Participate." (Participation includes but is not limited to items (a) through (e) above.) Your use of or access to certain features of the Openfilm Membership Program may require You to agree with and accept additional terms and conditions. If there is a conflict between this Agreement and any additional terms and conditions of use posted for a specific feature, those additional terms and conditions shall have precedence with respect to Your use of or access to that feature.
To Participate, You must register online with Openfilm at the Openfilm Site and create a unique, password-protected account ("Account"). You will be responsible for safeguarding Your password. You also take full responsibility for any actions under Your password and Account, whether authorized by You or not. You are responsible for keeping Your Account information current. You acknowledge and agree that Openfilm will have no responsibility or liability, directly or indirectly, for failure to deliver notices or payments that result from inaccurate Account information.
Your Participation is subject to all applicable Openfilm specification guidelines, requirements and policies which Openfilm may provide from time to time. These include but are not limited to the Copyright Policy (http://openfilm.com/info/copyright/), the Privacy Policy (http://www.openfilm.com/info/privacy/) and any specification guidelines (together, the "Policies"). You agree to comply with the Policies to enable, as applicable, proper delivery, display, tracking and reporting of actions related to the Openfilm Membership Program.
Openfilm, at any time and from time to time, may modify this Agreement and the Policies, or may modify, suspend or discontinue, temporarily or permanently, the Openfilm Products or the Openfilm Membership Program (or any parts thereof). Modifications to this Agreement and Policies will be posted on the Openfilm Site or made in compliance with any notice requirements set forth in this Agreement. Modifications to the Openfilm Products or the Openfilm Membership Program will be effective upon posting to the Openfilm Site. You agree that Openfilm shall not be liable to You or to any third party for any modification, suspension or discontinuance of this Agreement, the Policies, the Openfilm Products or the Openfilm Membership Program. By continuing to Participate after Openfilm has posted any such modifications or provided any required notices, You agree to be bound by the modifications. Please review this Agreement and the Policies regularly so that You will be apprised of any modifications. If any modification is not acceptable to You, Your only recourse is to cease Participation.
To remain eligible for Participation, You must at all times comply with the terms and conditions of this Agreement and all Policies. Openfilm reserves the right to refuse Participation to any applicant or participant at any time in its sole discretion.
If You register to Participate, You may communicate with Openfilm and other Account holders, post or publish comments or rating features regarding Video Content and Ads, Openfilm Products or the Openfilm Membership Program in, as may be made available at Openfilm's complete discretion, a discussion group, chat area, bulletin board, feedback area, news group, email functionality or other communication feature. All such communications are referred to after this as "Member Comments". You are solely responsible for all Member Comments You transmit or submit to Openfilm or through the Openfilm Membership Program, whether created by or for You, including but not limited to websites and content proximately reachable from such Member Comments. Openfilm disclaims all liability relating to Your Member Comments. As more fully set forth in Section 17 ("Representations and Warranties"), You may not submit any Member Comments that contain any sexually suggestive, pornographic, infringing, hate-related, violent or illegal content.
You are solely responsible for all video content You transmit or submit to Openfilm, whether created by or for You, including but not limited to graphics, music, sound, images, files, photos, animation, artwork, text, data, information, messages, hypertext links, scripts or other material (collectively, "Video Content"). Openfilm disclaims all liability relating to Your Video Content. As more fully set forth in Section 17 ("Representations and Warranties"), You may not submit Video Content that contains any pornographic, infringing, hate-related, violent or illegal content.
You agree and accept that Openfilm does not guarantee that Your Video Content will be distributed on any part of the Openfilm Network. Openfilm may, in its sole discretion, and without liability:
In connection with Openfilm's marketing, distribution and provision of the Openfilm Membership Program as contemplated herein, You permit Openfilm, as further described in Section 10, to:
During the term of this Agreement You may request that Openfilm remove any or all of Your Video Content from the Openfilm Site. Upon receipt of such request, Openfilm will remove any Ads associated with such Video Content and Your right to receive compensation, if any, for the removed Video Content will automatically terminate. In accordance with Section 8 ("Revenue and Payment Terms") below, Openfilm will pay You all undisputed amounts for the removed Video Content, if any, due to You within ninety (90) days from the last day of the calendar quarter in which such request to remove occurs. Openfilm will use commercially reasonable efforts to remove your Video Content from the Openfilm Site reasonably promptly upon receipt of Your request. However, You acknowledge and agree that Openfilm shall have no obligation to attempt to remove from distribution any of Your Video Content that is otherwise publicly available through the Internet or other publicly accessible medium, or to remove from distribution any of Your Video Content for a period of six months following your receipt of funds from Openfilm pursuant to Openfilm's "Filmmakers of the Month" award program, other than for reasons pertaining to substantiated allegation of intellectual property infringement.
In the event that Openfilm fails to promptly remove such requested Video Content from the Openfilm Site after Your request for removal, Openfilm shall not be liable to You for damages or charges of any kind in an amount greater than ten dollars ($10). For the avoidance of doubt, the Creative Commons BY-NC-ND License (defined below) that You have granted in Section 10(g) ("Content Providers: Your Irrevocable Non-Commercial Distribution License") herein shall remain in effect for this purpose only.
You agree and accept that Openfilm, upon request of the applicable Content Providers or in its sole discretion, may add or remove from the Openfilm Site any or all Video Content at any time. In conjunction with such removal of Video Content, Openfilm will remove any Ads associated with such Video Content that has been distributed in the Openfilm Network. Openfilm will pay You all undisputed amounts for the removed Ads, if any, due to You within ninety (90) days from the last day of the calendar quarter in which such request to remove occurs.
You agree that You will not:
Your access to and use of certain Applications and accompanying documentation, including but not limited to Openfilm's API or any software made available to You to assist You in uploading Your Video Content, may be subject to the terms of separate license agreements between You and Openfilm. You will be required to read and indicate Your agreement to such separate terms prior to installing or using such Applications.
Some Trial Features may be made available on an as-is basis only, which will be marked as such. Your use of the Trial Features is at Your own risk. All information relating to the Trial Features will be treated as "confidential" in accordance with Section 16 ("Confidential Information").
Your Participation is at Your own risk. Although the Openfilm Membership Program enables users to connect and share Video Content and Member Comments with one another and with end users or viewers, Openfilm has no responsibility to control or monitor any information or exchanges between or among users. Openfilm does not control the Video Content, Ads and Member Comments made available through the Openfilm Products. Some people may find Video Content, Ads and Member Comments objectionable, inappropriate or offensive. Openfilm does not control or guarantee, nor is Openfilm responsible for, the truth, accuracy, ownership, completeness, integrity, safety, timeliness, quality, appropriateness, legality or applicability of any Video Content, Ads and Member Comments. Openfilm assumes no responsibility for monitoring any Video Content, Ads or Member Comments or conduct during Participation. If Openfilm chooses, at any time in its sole discretion, to monitor (in whole or in part) Video Content, Ads, Member Comments or conduct during Participation, Openfilm nonetheless assumes no responsibility for Video Content, Ads and Member Comments, no obligation to modify or remove any Video Content, Ads or Member Comments and no responsibility for conduct during Participation. You agree that Openfilm has no responsibility or liability for the deletion or failure to store, maintain or transmit any Video Content, Ads or Member Comments.
(a) Payments Due to You. You may be able to generate revenue through Participation as a Content Provider, through valid, end user activity relating to Video Content and Ads. Such activity could include for example, without limitation, full Video Content views or clicks on an Ad, conversion of an Ad click to a sale, or delivery of an Ad impression displayed in connection with Video Content (collectively, "Advertising Actions").
Subject to Your compliance with the terms and conditions of this Agreement, Openfilm will pay You fifty percent (50%), or, in the case of Video Content from multiple Content Providers, a pro-rata share of 50% of the gross revenue paid to Openfilm from the applicable advertisers and third party service providers, less any third party affiliate acquisition fees, as a result of valid Advertising Actions generated in connection with Your Video Content distributed in the Openfilm Network.
(b) Payment Terms. Amounts due to You, if any, will be determined solely by Openfilm based on Advertising Action data-regarding impressions, clicks, conversions and other applicable metrics-collected by and/or supplied to Openfilm. Payments earned as a result of valid Advertising Actions will be recognized by Openfilm and posted to Your Account. All payments will be made in U.S. Dollars. Payments will be available for withdrawal or transfer thirty (30) days after the end of the calendar quarter in which they are recognized by Openfilm. For example, revenue generated as a result of Advertising Actions on June 30 and July 1 will be available for withdrawal on July 30 and October 30, respectively. Openfilm will not be liable for damages resulting from any failure to post payments to Your Account within such thirty (30) day period. Notwithstanding the foregoing, Openfilm shall make no payments until the total due to You is at least twenty-five dollars ($25). You will not be entitled to receive interest on any Account payments. Except as contemplated by subsection (c) ("Exceptions") below, payments will remain in Your Account until: (x) You transfer such amounts to a PayPal Account or other payment system acceptable to Openfilm; (y) You direct Openfilm in writing to distribute such payments to You via check, wire transfer or electronic transfer to a designated bank or PayPal Account or other payment system acceptable to Openfilm, or to issue you with a credit against your order of advertising or other services from Openfilm, or (z) Openfilm exercises its options under Section 14 ("Term and Termination") below. If You dispute Openfilm's payments made to You under this Agreement, You must notify Openfilm in writing within thirty (30) days of Openfilm depositing such payment to Your Account. Failure to notify Openfilm in this manner will result in Your waiver of any claim relating to such dispute. Openfilm will use reasonable efforts to resolve any such dispute in good faith, but Openfilm's resolution will be final. You are responsible for any and all applicable taxes or charges imposed by any government entity in connection with Your Participation. Openfilm may change its pricing and/or payment structure at any time, upon thirty (30) days' prior notice of any such change (unless Openfilm is required by law to provide more than thirty (30) days notice). All modified payment terms shall be effective thirty (30) days after notice has been provided to You by Openfilm (or such other time period specified in such notice). If any such modified payment terms are not acceptable to You, Your only recourse is to cease Participation. By continuing to Participate following notice of any modified payment terms as set forth herein, You accept and agree to be bound by such modified payment terms.
(c) Exceptions. Openfilm will have no obligation to pay any amounts, and is permitted to deduct or withhold any amounts from or posted to Your Account, determined or reasonably suspected by Openfilm in its sole discretion to have resulted from: (i) Action Fraud (as defined in Section 11 ("Action Fraud") below), including without limitation through any clicks originating from Your IP addresses or computers under Your control, solicited by payment of money, false representation or request for end users to click on Ads, or Actions co-mingled with a significant number of invalid Advertising Actions; (ii) Advertising Actions originating on Video Content that breaches this Agreement, including but not limited to the restrictions set forth in Section 12 ("Adult Content") and Section 13 ("Copyright Infringement"); or (iii) fraudulent, misleading or false activities. Openfilm reserves the right to withhold or deduct payment, if applicable, or suspend or otherwise disable Your Account, pending Openfilm's reasonable investigation of any of the foregoing or any breach of this Agreement by You.
Participation is governed by the Openfilm Privacy Policy located at http://www.openfilm.com/info/privacy/, which is incorporated into this Agreement by reference. Furthermore, by Participating, You understand that when You view or interact with Openfilm Products and features of the Openfilm Membership Program (for example, by clicking on an Ad), Openfilm may collect (and You may provide to Openfilm) information that is specific to how You (or Your end users) access and use the Internet as well as how You (or Your end users) view and/or interact with Openfilm Products ("Access Information"). Access Information may include, but is not limited to, an IP address, the website a user is logged onto, the geographic location of the IP address the user is using to access the Internet, the type of browser used, which and how many web pages have been viewed by the user, search terms used, referring/exit pages, platform type and date/time information. This information is anonymous and does not personally identify a user. Openfilm uses Access Information for the purpose of monitoring delivery and distribution of the Video Content and Ads, improving Ad targeting, delivery and reporting, improving the Openfilm Products and the Openfilm Membership Program and measuring their effectiveness with users. Access Information may be shared with Openfilm's third party service providers, affiliates, business partners, sponsors, advertisers, employees, customers and distribution partners.
(a) Openfilm's Ownership Rights. Openfilm and its licensors own all right, title and interest, including without limitation all worldwide intellectual property rights in the Openfilm Products and the Openfilm Membership Program, and all such rights to all derivative works or enhancements of, in and to, or relating to, the Openfilm Products and the Openfilm Membership Program. By entering into this Agreement or by Your Participation, You will not acquire any intellectual property or similar rights in the Openfilm Products, the Openfilm Membership Program or related products and services. You agree You will not (i) remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Openfilm Products, the Openfilm Membership Program or related products and services; or (ii) use Openfilm's name, logo, trademark, trade names or service marks except as expressly permitted in this Agreement without Openfilm's prior written consent.
(b) Your Ownership Rights. Subject to the licenses You are granting in this Agreement, You retain all right, title and interest, including without limitation all worldwide intellectual property rights, in and to Your Video Content that is submitted, posted or displayed by You on or through the Openfilm Products and Openfilm Membership Program. Openfilm shall not acquire any right, title or interest in or to such Video Content, except as provided herein. Any rights not granted by You herein are deemed retained by You. As more fully described in Section 14 ("Term and Termination"), You have the right to terminate this Agreement and revoke certain licenses You are granting in this Agreement, with respect to all Video Content You provide or with respect to particular works You provide. If You choose to revoke any of Your revocable licenses, Openfilm will use commercially reasonable efforts to remove Your Video Content from the Openfilm Site reasonably promptly upon receipt of Your notice of revocation. You acknowledge that You are aware that Openfilm has limited practical ability to control or monitor possible infringement of Your intellectual property rights by other parties and that Openfilm assumes no responsibility for controlling or monitoring such intellectual property rights. In addition, Openfilm is not responsible for enforcing Your intellectual property or for suing or taking other legal action against infringers who fail to cease using Your Video Content upon revocation. You or a third party licensor, as appropriate, are responsible for protecting Your intellectual property rights. Openfilm may, at its discretion, choose to assist You in connection with protecting or enforcing Your intellectual property rights in a particular instance; in such event, this does not mean that Openfilm has an obligation to do so in any other instance and this does not mean that Openfilm has an obligation to effectively protect or enforce Your intellectual property rights.
(c) Openfilm's Trademark License to You. During the term of this Agreement, and subject to Your compliance with the terms and conditions of this Agreement, You will have the right to use the trade names, trademarks, logos and designations in or associated with the Openfilm Network (the "Openfilm Marks") solely for purposes of identifying Openfilm and solely in connection with Your permitted activities under this Agreement. You agree that the Openfilm Marks and all associated goodwill are and will remain the sole property of Openfilm, that any goodwill generated as a result of Your licensed use of Openfilm Marks belongs exclusively to Openfilm and inures solely to the benefit of Openfilm, and that Your use of Openfilm Marks is subject to Openfilm's control of the quality of any products or services with respect to which You may be authorized to use Openfilm Marks.
(d) Your Member Comments License to Openfilm. By uploading, submitting, emailing, posting, publishing or otherwise transmitting any Member Comments, You hereby grant (or warrant that the owner of such rights has expressly granted) Openfilm a worldwide, royalty-free, non-exclusive, sublicensable, transferable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, create derivative works of, perform, display, distribute, publish and transmit such Member Comments in any form, medium or technology now known or later developed. You warrant that any Member Comments You submit do not infringe upon any rights, including intellectual property rights, of any other parties. In addition, You warrant that all so-called moral rights in the Member Comments have been waived.
(e) Your Revocable Limited License to Openfilm. In order to allow Openfilm to distribute Your Video Content in the Openfilm Network, You hereby grant (or warrant that the owner of such rights has expressly granted) to Openfilm a worldwide, revocable, non-exclusive, sublicensable and transferable, limited right and license to use, reproduce, modify and adapt (solely to permit Openfilm to conform and adapt Your Video Content to technical requirements, including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies), excerpt, publish, transmit, publicly perform, display, reference, store, host, index and cache, in any form, medium or technology now known or later developed, any Video Content, Member Comments or materials You submit to Openfilm, in whole or in part, whether created by or for You, by any method, in any and all media and through any media distribution channels, whether currently existing or hereafter developed. You understand that Your revocable limited license to Openfilm includes Your grant to Openfilm of the right to create, display and distribute (as set forth more fully in the previous sentence) a derivative work based on Your Video Content, which derivative work is comprised solely of Your Video Content as adapted to include Openfilm's computer software, including Openfilm's Ad Insertion Software, whose functions are to enable Ads to be associated with Your Video Content, to identity Your submission as Your Video Content, to assist Openfilm in properly tracking and calculating any revenue amounts that You may earn, and to effect related functions. (After this we refer to the aforementioned derivative work as "Your Openfilm Modified Video Content"). Openfilm's rights, with respect to Your Openfilm Modified Video Content, are limited to its rights set forth in this Agreement, and Openfilm expressly waives and disclaims, with respect to You, any other rights it might otherwise hold to Your Openfilm Modified Video Content under copyright law. As more fully described in Section 14 ("Term and Termination"), this license will terminate: (i) with respect to any Video Content that You have requested be removed in accordance with Section 6(a) ("Participation (Content Providers)"); and (ii) upon termination of the Agreement in accordance with Section 14 ("Term and Termination").
(f) Your Revocable Commercial Distribution License to Openfilm. In order to allow Openfilm to distribute Your Openfilm Modified Video Content in the Openfilm Network, You hereby grant (or warrant that the owner of such rights has expressly granted) to Openfilm a limited, revocable right to use, reproduce, publicly perform, distribute and display Your Openfilm Modified Video Content for monetary compensation or commercial purposes in the Openfilm Network as contemplated by this Agreement and to engage in such further actions relating to and in connection with Your Video Content as may be necessary or appropriate in order to effect the purposes of the Openfilm Network.
(g) Your Irrevocable Non-Commercial Distribution License. You hereby grant (or warrant that the owner of such rights has expressly granted) to any persons or entities who want to use Your Openfilm Modified Video Content in a manner not intended for commercial advantage or private monetary compensation, a right to use, reproduce, publicly perform, distribute and display Your Openfilm Modified Video Content for non-commercial purposes pursuant to the terms and conditions of the Creative Commons "Attribution-NonCommercial-NoDerivs 2.5" license located at http://creativecommons.org/licenses/by-nc-nd/2.5/legalcode (the "Creative Commons BY-NC-ND License"). Insofar as Openfilm holds any rights to Your Openfilm Modified Video Content pursuant to Section 10(d) of this Agreement, Openfilm also grants the rights stated in this paragraph to such persons or entities pursuant to the Creative Commons BY-NC-ND License.
(h) Your Information. You authorize Openfilm to use, as applicable to Your Participation, Your Video Content, name, likeness, trademarks, service marks, trade names, proprietary logos, domain names, usage statistics and any other source or business identifiers (collectively, "Your Information") in presentations, as a feature on the Openfilm Site, advertising and marketing materials, press releases, customer lists and financial reports, in connection with Openfilm's marketing, publicity, distribution and provision of the Openfilm Products and Openfilm Membership Program. You also grant Openfilm a non-exclusive license to index and cache Your Information and any portion thereof, by manual or automated means (including with web spiders and crawlers), for purposes of promoting, providing and improving the Openfilm Products and the Openfilm Membership Program and for soliciting other distributors, publishers, creators and advertisers to use the Openfilm Products and Participate. You acknowledge and agree: (i) that You understand that You may provide, and Openfilm may collect, Your Information during Your Participation; and (ii) that Your Information may be shared with Openfilm's affiliates, business partners, sponsors, advertisers, employees, customers and distribution partners.
(i) No Endorsement; No Publicity. Openfilm does not endorse, verify, evaluate or guarantee any information or Video Content or Ads provided by users, including You, and nothing shall be considered as an endorsement, verification or guarantee of any information or Video Content or Ads. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which offer such information, (i) containing or suggesting an endorsement by Openfilm of You or Your Video Content or Ads; or (ii) relating to this Agreement, without the prior review and written approval of Openfilm. Notwithstanding the foregoing, You may accurately disclose and describe Your Participation and Your Video Content (for example, describing and promoting Your Video Content on Your blog or in emails).
(j) Reserved Rights. You will not attempt to modify, prepare derivative works from, translate, adapt, edit, decompile, disassemble or reverse engineer any specifications, technology, applications or software programs provided or made accessible to You or used by Openfilm in connection with the Openfilm Products and Openfilm Membership Program in any way, unless expressly authorized in writing by Openfilm. Openfilm may modify the format and look and feel of the Openfilm Products and Openfilm Membership Program from time to time. Excluding Your Video Content or Ads, You agree to assign and hereby do assign to Openfilm and its licensors (as applicable) all right, title and interest in and to any part of the Openfilm Products and Openfilm Membership Program that You may have or acquire during Your Participation. You warrant that all so-called moral rights You may have in the Openfilm Products or Openfilm Membership Program are hereby waived. You will not delete, remove, obscure or in any manner alter the copyright, trademark, license or other proprietary rights notices affixed to or contained in the Openfilm Products or Openfilm Membership Program. Any rights not expressly granted herein are deemed withheld.
You will not, and will not authorize any party to, directly or indirectly, generate automated, fraudulent or otherwise invalid Advertising Actions. If, in Openfilm's reasonable business judgment, Advertising Actions or activity related to Your Account is suspected or determined to be so-called "click fraud" or "impression fraud", whether in any automated or human way, by the use of a person, an automated script or a computer program (for example, online robots or "bots") to click on an Ad, or any other fraudulent means, to increase impressions, skew results or imitate a legitimate user of a web browser, for example, by clicking on an Ad for the purpose of generating an improper click value and generating revenue (collectively, "Action Fraud"), Openfilm may suspend or otherwise disable Your Account until such time as the matter is resolved to Openfilm's satisfaction.
You will not use the Openfilm Site or Openfilm Membership Program for any purpose or in any manner to display, post or make available any explicit, graphic sexual, pornographic or erotic material nor upload, email, post, publish, distribute, transmit, submit or otherwise make available through the Openfilm Site or Openfilm Membership Program any Video Content, Ads or Member Comments, that is of an explicit, graphic sexual, pornographic or erotic nature ("Adult Content"). Examples of content that Openfilm, in its sole discretion, considers to be Adult Content include, but are not limited to material that is pornographic, obscene, indecent or profane in its use of sexual language or description or depictions of sexual acts. If Openfilm finds Video Content that it determines, in its sole discretion, contains Adult Content, Openfilm may, without notice, remove or block access to such Video Content. Openfilm reserves the right to suspend or cancel at any time and without notice Your Account, or deduct or withhold payments related to any Video Content or Ads, that Openfilm, in its sole discretion, determines to be in violation of this Section. Openfilm will take all appropriate steps with Video Content that Openfilm believes violates applicable laws, including cooperation with any law enforcement investigation. If You see content that You believe is Adult Content or is in violation of law or this Section, You should contact Openfilm immediately.
You will not use the Openfilm Site or Openfilm Membership Program for any purpose or in any manner that infringes the copyrights of any third party, nor will You upload, email, post, publish, distribute, transmit, submit or otherwise make available through the Openfilm Site or Openfilm Membership Program any content, that infringes the copyrighted works or violates the intellectual property rights of any third party. In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA") (the text of which may be found on the U.S. Copyright Office website at "http://lcweb.loc.gov/copyright/"), it is Openfilm's policy to respond to notices of any actual or alleged infringement that are reported to Openfilm's "Designated Copyright Agent" and that comply with the DMCA. It is Openfilm's policy to terminate the Accounts of users of repeat infringers or of users repeatedly charged with infringement, in appropriate circumstances. If You believe that a work has been copied in a way that constitutes copyright infringement, You should send a notice of infringement to Openfilm's Designated Copyright Agent in accordance with Openfilm's Copyright Policy (http://www.openfilm.com/info/copyright/), incorporated herein, at the address indicated in Openfilm's Copyright Policy.
(a) Termination. Openfilm may immediately terminate this Agreement, or cancel the Openfilm Membership Program, for any reason at any time. You may terminate this Agreement at any time by disabling Your Account or providing notice to Openfilm as set forth in Section 15 ("Notifications").
(b) Effect of Termination.
General. Upon termination or expiration of this Agreement, Your right to Participate (including but not limited Your right to receive compensation, if any, as a Content Provider) will automatically terminate. In the event of termination, Your Account will be disabled and You may not be granted access to Your Account or any files or other content contained in Your Account although residual copies of information may remain in the Openfilm Membership Program system. Upon termination: (i) all licenses granted to You hereunder will immediately terminate; (ii) You will promptly destroy all copies of Openfilm Products in Your possession or control; and (iii) Openfilm will pay all undisputed amounts, if any, due to You within ninety (90) days from the last day of the month in which termination occurs. In no event, however, shall Openfilm make payments for any earned balance less than twenty-five dollars ($25). Upon termination, Openfilm may continue to use any user analytics collected hereunder for solely internal (including archival) purposes, and all related licenses You have granted Openfilm shall remain in effect for this purpose only. In the event that this Agreement or the Openfilm Membership Program expires or is terminated, Openfilm shall not be obligated to return any materials to You.
Content Providers. Upon termination, Openfilm will remove any Ads or deactivate any Ad links associated with Your Video Content. Although Openfilm will use commercially reasonable efforts to ensure Your Video Content is removed from the Openfilm Site reasonably promptly following termination, Openfilm shall have no obligation to remove any of Your Video Content that is otherwise publicly available through the Internet or other publicly accessible medium. In the event that Openfilm does not promptly remove Your Video Content from the Openfilm Site through inadvertence or other error, Openfilm shall not be liable to You for damages or charges of any kind in an amount greater than the revenues You would have been entitled to under this Agreement but for the termination.
(c) Survival. The rights and obligations contained in Section 10(a) ("Openfilm's Ownership Rights") and 10(b) ("Your Ownership Rights"), Section 10(f) ("Content Providers: Your Irrevocable Non-Commercial Distribution License"), Section 14(b) ("Effect of Termination"), Section 14(c) ("Survival"), Section 16 ("Confidential Information"), Section 19 ("Indemnity"), Section 20 ("No Guarantees; Warranty Disclaimers"), Section 21 ("Limitation of Liability") and Section 22 ("General") of this Agreement will survive termination or expiration of this Agreement for any reason.
Openfilm may provide notices to You by email to the email address specified in Your Account, by posting a message to Your Account interface or by posting a message to the Openfilm Site, and is deemed received when sent (for email) or no more than fifteen (15) days after having been posted (for messages to Your Account interface or on the Openfilm Site). Any notices to Openfilm must be sent either: (i) via first class or air mail or overnight courier to Openfilm, Inc., Openfilm Membership Program, 201 South Biscayne Boulevard, Suite 2804, Miami, FL 33131; or (ii) via first class or air mail or overnight courier, and are deemed given upon receipt.
During the term of this Agreement, You may receive confidential information from Openfilm related to Your Participation. Except as expressly authorized by this Agreement or necessary for performance under this Agreement, You will use reasonable efforts to maintain the confidentiality of all such information and You will not disclose such information without the prior written consent of Openfilm. In no event will You use less effort to maintain the confidentiality of such information than You ordinarily use with respect to Your own confidential information. The foregoing will not restrict You from disclosing confidential information of Openfilm: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that if You are required to make such a disclosure, You give reasonable and timely notice to Openfilm to contest such order or requirement; and (b) on a confidential basis to Your legal or financial advisors, or prospective acquirers or investors. Examples of Openfilm confidential information include without limitation: (i) all software, technology, services, algorithms, search engines and search indices, programming, specifications, materials, guidelines and documentation relating to the Openfilm Products and the Openfilm Membership Program; (ii) click-through or Advertising Action rates, conversion rates and other statistics relating to the Openfilm Products and the Openfilm Membership Program; and (iii) Trial Features or any other information designated in writing by Openfilm as "Confidential" or an equivalent designation. Confidential information does not include information that: (w) is or becomes generally known to the public through no fault of or breach of this Agreement by You; (x) is rightfully known by You at the time of disclosure without a confidentiality obligation; (y) is independently developed by You without use of Openfilm's confidential information; or (z) You rightfully obtain from a third party without disclosure restrictions.
(a) Your Authority. You represent and warrant to Openfilm that: (i) You have all requisite power and authority, corporate or otherwise, to enter into this Agreement, to conduct Yourself and Your business and to execute, deliver, and perform all of Your obligations under this Agreement; (ii) You have provided, and will continue to provide, information that is correct and current; (iii) You are the owner or the authorized agent of the owner of Your Video Content (if You are a Content Provider), and Your Member Comments (if You are a Community Member) and have full technical and editorial control of the same; (iv) You have the right to grant the licenses granted under this Agreement; (v) Your performance under this Agreement and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which You are currently bound or will become bound in the future; (vi)Your performance under this Agreement will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign; and (vii) You will Participate solely for the purposes intended and expressly permitted.
(b) Your Materials. You represent and warrant that Your Video Content, Your Member Comments or any other information or material You submit or make available to others during Your Participation, and Openfilm's use thereof pursuant to this Agreement, (i) do not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including without limitation any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right; (ii) do not contain Adult Content; (iii) are not fraudulent, misleading, hateful, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar or obscene; (iv) do not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age, or otherwise interfere with another party's use of the Openfilm Products or Participation in the Openfilm Membership Program; (v) do not promote illegal or harmful activities or substances (including without limitation activities that promote or provide instructional information about activities such as making or buying illegal weapons or substances); (vi) are not illegal, unlawful or contrary to the laws or regulations in any state or country where, as applicable, Your Video Content are created, displayed or accessed; (vii) do not contain any computer programming routines or viruses (including without limitation time bombs, Trojan Horses, worms, Easter Eggs, drop dead devices or cancelbots) that are intended to damage, interfere with, intercept or expropriate any system data or personal information, permit unauthorized access to or Participation in the Openfilm Membership Program or disable, damage or erase any portion of the Video Content or Ads processed or stored therein; or (viii) do not constitute unsolicited bulk email, junk mail, spam or chain letters.
(c) Your Actions. You represent and warrant that You will not, and will not authorize or encourage any third party to, directly or indirectly: (i) obtain any information or materials relating to the Openfilm Products or the Openfilm Membership Program through any means not intentionally made available by Openfilm to You, or attempt to gain unauthorized access to Openfilm's database, technology, computer systems or networks associated with the Openfilm Products or the Openfilm Membership Program; or (ii) engage in any activity that disrupts, diminishes the quality of, interferes with the performance of or impairs the functionality of the Openfilm Products and the Openfilm Membership Program.
(d) Cooperation. You agree to cooperate fully with Openfilm to investigate any suspected or actual activity that is in breach of this Agreement. You acknowledge that any violation of this Section 17 ("Representations and Warranties") is a material breach of this Agreement and that Openfilm may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your Account or termination of this Agreement, and the pursuit of all available civil or criminal remedies. Openfilm reserves the right to investigate, at its own discretion, any activity that Openfilm suspects may violate this Agreement. Openfilm may, as applicable, withhold payment, notify Your bank, the authorities, suspend or cancel Your Account and/or take appropriate actions at any time without notice to You if Openfilm, in its sole discretion, (i) suspects that You have breached or failed to comply (in full or in part) with any provision of this Agreement or any Policies or rules established by Openfilm; or (ii) suspects that Your actions may be illegal or cause liability.
The Openfilm Products and the Openfilm Membership Program may provide, or third parties may provide, links to other websites or resources. Because Openfilm has no control over such sites and resources, You acknowledge and agree that Openfilm is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such websites or resources. You further acknowledge and agree that Openfilm shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.
You will indemnify, defend and hold Openfilm and its officers, directors, employees, shareholders, successors, agents, affiliates, subsidiaries and applicable third parties (e.g., relevant content creators, advertisers, syndication partners, referral partners, service providers, licensors, licensees, consultants and contractors) (collectively, the "Openfilm Entities") harmless from and against any claims, liabilities, losses, costs, damages or expenses (including reasonable attorneys' fees and costs) directly or indirectly arising out of or in any way relating to: (i) Your gross negligence or willful misconduct; (ii) Your Video Content (if You are a Content Provider), Your Member Comments (if You are a Community Member) or any other information or material You submit during Participation; (iii) Your conduct, including Your use of Openfilm Products or any other actions related to Your Participation; (iv) any actual violation or breach of this Agreement, or allegation of such violation or breach by a third party, including breach of any representation made by You hereunder; or (v) the alleged or actual violation or infringement of any intellectual property, privacy, publicity, confidentiality or proprietary rights of any third-party as a result of any action or Participation by You (collectively, the "Claims"). You are solely responsible for defending any such Claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the Openfilm Entities. Openfilm shall have the right to withhold any payments due to You, if any, to offset liabilities and expenses covered hereunder. Openfilm shall have the right, in its sole discretion, to select its own legal counsel to defend Openfilm from any Claims (but by doing so shall not excuse Your indemnity obligations) and You shall be solely responsible for the payment of all Openfilm's reasonable attorneys' fees incurred in connection therewith. You shall notify Openfilm immediately if You become aware of any actual or potential claims, suits, actions, allegations or charges that could affect Your or Openfilm's ability to fully perform their respective duties or to exercise its rights under this Agreement. You shall not, without the prior written approval of Openfilm, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against You, if such settlement or resolution results in any obligation or liability for Openfilm.
(a) No Guarantees. Openfilm makes no guarantees: (i) regarding the availability, operation, maintenance, timing or delivery of the Openfilm Products, the Openfilm Membership Program or any distribution channel (or any portion thereof); (ii) that Participation will secure any success or generate any revenue or the amount of payment (if any) to be made hereunder; (iii) that Video Content or Ads will be distributed in the Openfilm Network; (iv) regarding the relevancy of any Ads to Video Content; or (v) regarding Advertising Action rates, including the level or number of clicks, conversions to sales or impressions on any Ad, in connection with Video Content.
(b) Warranty Disclaimers. Your use of the Openfilm Products and Participation in the Openfilm Membership Program are at Your sole discretion and risk. The Openfilm Products and the Openfilm Membership Program, and all materials, information, products and services included therein, are provide on an "AS IS" and "AS AVAILABLE" basis without warranties of any kind.
THE OPENFILM ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE OPENFILM PRODUCTS AND THE OPENFILM MEMBERSHIP PROGRAM, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE.
The Openfilm Entities disclaim any warranties: (i) regarding the security, accuracy, reliability, timeliness and performance of the Openfilm Products or the Openfilm Membership Program; (ii) regarding the goods, services, advise, information or links provided by any third party services providers, Content Providers, sponsors, syndicators or Community Members; (iii) that the Openfilm Products or the Openfilm Membership Program will meet Your requirements; or (iv) that the Openfilm Products or the Openfilm Membership Program will be error-free or that any errors will be corrected. No advice or information, whether oral or written, obtained by You from Openfilm or from Your Participation, shall create any warranty not expressly stated in this Agreement.
Openfilm assumes no responsibility for: (i) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication; and (ii) any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Openfilm Products or the Openfilm Membership Program or combination thereof, including any injury or damage to You or to any person's computer related to or resulting from Participation.
Under no circumstances shall Openfilm be responsible for any loss or damage, including personal injury or death, resulting from Participation, from any Video Content, Ads or Member Comments posted on or through the Openfilm Products or the Openfilm Membership Program, or from the conduct of any users of the Openfilm Products or Participation in the Openfilm Membership Program, whether online or offline.
Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to You.
THE OPENFILM ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA OR PROFITS, COST OF PROCURING SUBSTITUTE PRODUCTS OR BUSINESS INTERRUPTION), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE OPENFILM PRODUCTS, YOUR PARTICIPATION IN THE OPENFILM MEMBERSHIP PROGRAM OR USE OF ANY MATERIALS AVAILABLE TO YOU FROM OR THROUGH THE OPENFILM MEMBERSHIP PROGRAM (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT OPENFILM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OPENFILM'S LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO OPENFILM FOR THE OPENFILM PRODUCTS OR PARTICIPATION IN THE OPENFILM MEMBERSHIP PROGRAM.
You acknowledge that Openfilm permits Your Participation relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain and of the allocation of risks between the parties. Openfilm shall have no liability for any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to Openfilm's infrastructure or connectivity to the Internet, or failure of any third party distribution partner, (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, Openfilm will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.
Some states or jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to You.
(a) Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The United Nations Convention on Contracts for the International Sale of Goods is excluded and does not apply to this Agreement. Except as expressly set forth in subsection (b) below ("Injunctive Relief"), any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be submitted to the American Arbitration Association or its successor ("AAA") and decided by binding arbitration, in accordance with the AAA's rules and procedures in effect on the date of submission to arbitration, by one arbitrator reasonably familiar with the business pertaining to the products and services covered by this Agreement, appointed in accordance with such Rules and Procedures. The arbitrator shall apply Florida law to the merits of any dispute or claim. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in Miami-Dade County, Florida, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. In the event any action is brought by either party in connection with this Agreement, the substantially prevailing party will be entitled to recover from the other party all the costs, attorneys' fees and other expenses reasonably incurred by such party. All offers, promises, conduct and statements, whether oral or written, made in the course of the arbitration by any of the parties, their agents, employees, experts and attorneys, and by the arbitrator and any AAA employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the arbitration.
(b) Injunctive Relief. Notwithstanding the "Governing Law; Arbitration" section above, You agree that certain breaches by You would cause irreparable injury to Openfilm, for which there are no adequate remedies at law, and nothing in this Section shall be deemed to prevent or delay Openfilm's attempt to seek a temporary restraining order, preliminary injunction, specific performance or other interim or conservatory relief from any court having jurisdiction, without any abridgment of the power of the arbitrator, for Your breach of: (i) Section 10(a) ("Openfilm's Ownership Rights"); (ii) Section 13 ("Copyright Infringement"); and (iii) Section 16 ("Confidential Information").
(c) Assignment. You may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Openfilm. Any attempted assignment in violation of this Section will be null and void and of no force or effect. Openfilm may assign this Agreement freely at any time without notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's permitted successors and assigns.
(d) Waiver; Severability. The failure to require performance of any provision shall not affect Openfilm's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of this Agreement is found to be unenforceable, such portion will be modified to reflect the parties' intention and only to the extent necessary to make it enforceable, and the remaining provisions of this Agreement will remain in full force and effect.
(e) Export Restrictions/Legal Compliance. You agree to comply with all United States and other applicable export laws and related restrictions and regulations, and not to directly or indirectly export, provide or otherwise make available the services and products of Openfilm in violation of any such export laws, unless any required prior authorizations or necessary approvals are obtained by You, at Your expense, from the applicable United States or foreign authority.
(f) Entire Agreement. This Agreement constitutes the entire and exclusive understanding and agreement between You and Openfilm regarding this subject matter, and supersedes any and all prior or contemporaneous agreements or understandings, written and oral, between You and Openfilm relating to this subject matter. You may be subject to additional terms and conditions that may apply when You use or access certain features of the Openfilm Membership Program.
(g) Relationship. You and Openfilm are independent contractors, and this Agreement, including but not limited to submission or distribution of any Video Content or Ads, will not, in whole or in part, establish any relationship of partnership, joint venture, employment, franchise or agency between the You and Openfilm. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. Neither party is authorized to act as an agent or representative of the other or for or on behalf of the other party in any capacity other than as expressly set forth in this Agreement. Neither party shall in any manner advertise, represent or hold itself (or any of its agents) out as so acting or being authorized so to act, or incur any liabilities or obligations on behalf of, or in the name of, the other party, unless specifically provided for in this Agreement. Moreover, each party shall be solely responsible for the payment of all of its own taxes, assessments and all other similar withholdings from or assessments on any monies paid hereunder or in connection with the transactions contemplated hereby.
(h) Reserved Rights. Openfilm reserves the right to change, in whole or in part, the names, logos, presentation and display of the Openfilm Member Agreement, the Openfilm Membership Program and the Openfilm Products at any time in its sole discretion.
© 2009 Openfilm, LLC
